Eviction of a person who became aggresive
I am a pensioner and is renting a house from a friend and sub lease one of the rooms. This person quit his job/ was fired a month ago and I was struggling to get his rent from him. He still has no job, and is sitting at home the whole day. The end of last month he sold/pawned his laptop to pay me R1 700 in stead of R2 000. I told him that he must move out the end of this month and he told me (very aggressively) that he won’t leave and will find the money to pay me. He is verbally abusing me and he is also using drugs in his room. I gave him a written notice to leave by the end of the month, but I can see I am going to have a problem.
What can I do?
The rights and duties between you and your tenant is perfectly the same as that that exist between landlord and tenant. The fact that it is a sublease is irrelevant. Section 4(5)(a) of the Rental Housing Act entitles the landlord to receive prompt and regular payment of rental. Infact, that is the reason why you entrusts part of your dwelling to the tenant in the first place. So by failing to pay you promptly, your remedy can be found in the common law called the landlord’s legal hypothec which gives landlord a powerful weapon against a tenant who is in arrears.
The inference that can be drawn from your tenant’s behaviour is that he is not prepared to vacate your premises despite the notice. The implication is that you must go to court to evict him because the Constitution made it clear that only the court can approve eviction. So, rather than going to court just to get eviction order only, why not in the same application, ask the court for an order for a hypothec? This means you will not only be granted the power to have him evicted but acquire the right to seize his property and sell them to recoup the arrears.
There are two ways in which you can do this in terms of the Magistrates’
Courts Act, 32 of 1944.
i) Section 31: allows the landlord to issue a summons with an automatic rent interdict. This means that the tenant cannot remove his goods identified by the sheriff and
listed on an inventory, until the court gives the final order.
ii) Section 32: the landlord applies for the tenant’s goods to be attached by telling the court on affidavit where the dwelling is, the amount of unpaid rental, that the tenant was given seven days written notice to pay the arrear rental or that such demand was made and that the tenant is about to remove the goods from the dwelling to avoid payment of the rental.
You may need to speak to your lawyer for direction and guidance on how to proceed with the application.
ADV RF ONOVO is an admitted Advocate of the High Court of South Africa. He is instructed by OKEKE ATTORNEYS in Johannesburg.